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Groups urge court to nix Waters of the U.S. rule

National Pork Producers Council joined dozens of other agricultural organizations, businesses and municipalities in asking a federal court to throw out a Clean Water Act rule that would give the government broad jurisdiction over land and water.

Source: National Pork Producers Council | Nov 02, 2016

The National Pork Producers Council yesterday joined dozens of other agricultural organizations, businesses and municipalities in asking a federal court to throw out a Clean Water Act rule that would give the government broad jurisdiction over land and water.

The Waters of the U.S. rule, which took effect Aug. 28, 2015, was proposed in April 2014 by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to clarify the agencies’ authority over various waters. That jurisdiction — based on several U.S. Supreme Court decisions — had included “navigable” waters and waters with a significant hydrologic connection to navigable waters. But the regulation broadened that to include, among other water bodies, upstream waters and intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation. It also covered lands adjacent to such waters.

The U.S. Court of Appeals for the 6th Circuit in Cincinnati last October issued a stay on implementation of the regulation until disposition of numerous lawsuits against it. Those suits were consolidated in the 6th Circuit, where the NPPC and the other groups now are arguing that: the agencies promulgated the WOTUS rule without following federal rulemaking procedures; the regulation is arbitrary and capricious or contrary to law; and the agencies exceeded their authority under the Clean Water Act and the U.S. Constitution.

“The WOTUS rule is vague, overbroad and fails to let regulated parties know when their conduct violates the law,” says NPPC President John Weber, a pork producer from Dysart, Iowa. “We all want clean water, but this regulation is just a big land grab that promotes growth in the size of government and allows activists to extort and micromanage all kinds of farming and business activities.”

While it could be more than several months before the court renders a decision in the case, in issuing the stay last October, it found there was a substantial likelihood that in writing the WOTUS rule EPA and the Corps of Engineers failed to comply with the Supreme Court’s instructions in previous Clean Water Act cases and that the agencies’ actions in the rulemaking process were “facially suspect.”

On the latter point, the groups in their brief to the court say the EPA and the Corps of Engineers failed to reopen the public comment period after making fundamental changes to the proposed rule and withheld until after the comment period closed the scientific report on which the rule rested. The agencies also refused to conduct required economic and environmental analyses, engaged in a propaganda campaign to promote the rule and rebuke its critics and illegally lobbied against congressional efforts to stop implementation of the rule.